Labour exploitation in the context of human trafficking

Labour exploitation in the context of
human trafficking
A baseline study for Switzerland
Authors: Johanna Probst and Denise Efionayi, with the collaboration of Dina Bader
Study on behalf of KSMM/SCOTT, fedpol.
March 2016
Executive Summary
Context and aims of the survey
Economic globalisation, greater European integration and the increase in communication and transport
have all had a global impact on working conditions and working relations. The growing inequality of
wealth between the countries and regions of the world has given rise to new or forgotten forms of
labour exploitation. Some of these forms of exploitation are closely linked to human trafficking. Until
now, human trafficking has been associated first and foremost with the sexual exploitation of women.
Since coming on the international agenda, human trafficking has become an increasing source of
worry to Europe due to this phenomenon’s potential impact on the social and economic fabric of the
region. This applies equally to Switzerland, which has implemented various measures in the last
decade to counter human trafficking in all its forms. Switzerland’s anti-trafficking strategy is based on
four pillars: prevention, prosecution, victim protection and partnership (at the political level, across
various disciplines and at the international level). Responsible for the fight against human trafficking
is the Swiss Coordination Unit against the Trafficking in Persons and Smuggling of Migrants
(KSMM/SCOTT) at the Federal Office of Police.
Although a number of measures have been adopted to combat sexual exploitation, little has been
undertaken with regard to human trafficking for the specific purpose of labour exploitation. Despite
the increase in the number of research projects and reports at political level, empirical data on this
form of trafficking is almost non-existent in Switzerland. The KSMM/SCOTT Permanent Secretariat
therefore commissioned a study on the phenomenon in that country. Its three principal aims were to
define labour exploitation in the Swiss context, to identify the economic sectors which are at risk or
exhibit a significant occurrence of human trafficking for labour exploitation, and thirdly, to determine
the profiles of (potential) perpetrators and victims.1 In addition, the study considered measures that the
authorities and civil society could adopt to prevent and detect this form of exploitation. On account of
the methodological challenges involved in such an approach (Cyrus et al. 2010; ILO 2011), the study
did not attempt to quantify the phenomenon, but adopted instead an exploratory approach.
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For methodological and practical reasons, the survey was limited to non-sexual exploitation, which is why sex work in the
narrow sense or activities in the wider ̒adultʼ sector, such as cabaret dancing, were not covered by the survey. On the other
hand, the survey examined situations outside the sex industry where both sexual exploitation and labour exploitation exist.
Literature and field of research
Whereas trafficking for the purpose of sexual exploitation is well documented, there is relatively little
reliable information on human trafficking for the purpose of labour exploitation in Europe. This is
particularly true for Switzerland, where studies on the occurrence and characteristics of this
phenomenon are lacking. This investigation therefore goes some way to filling the gap.
Much is known on the general phenomenon of trafficking from various international studies.
However, these studies do not always differentiate between the various forms of trafficking. In so far
as the existing literature focuses on trafficking for the purpose of labour exploitation, it uses different
terms such as forced labour, servitude, slavery, etc. Some recent European studies are particularly
relevant to studying labour exploitation and trafficking for that purpose. These include a comparative
survey of labour exploitation within the European Union (FRA 2015), a series of publications on
trafficking for the purpose of labour exploitation in Germany (Cyrus 2005, 2011; Cyrus et al. 2010)
and a paper offering an overview of concepts and definitions to develop the concept of ̒the continuum
of exploitationʼ (Skrivankova 2010). In short, international research on trafficking for the purpose of
labour exploitation depicts a phenomenon in which elements of criminal law and civil law are merged,
often rendering a legal understanding of the phenomenon difficult. Without going into detail, the
researchers who carried out the study in Switzerland were surprised by the many parallels between
their research and the European studies, both with regard to the phenomenon of labour exploitation
and trafficking for that purpose, as well as by the tepid response of the authorities.
In view of the absence within the social sciences of a consensual definition of labour exploitation and
the meagre number of court decisions in Switzerland relating to human trafficking for that purpose, the
researchers developed their own definition of labour exploitation for their use within the survey. The
definition used in the research was based on the analysis of empirical data relating to instances of
labour exploitation and trafficking to that end. Based on that definition (stated below), this report
attempts to outline the phenomenon of labour exploitation. The authors consider the exploitation of
labour and human trafficking as two (separate) phenomena. These two phenomena can culminate in
human trafficking for labour exploitation when exploitation comes about as a result of trafficking. In
the survey, labour exploitation was defined according to the prevailing legal standards for working
conditions in Switzerland. A work situation diverging from the ̒normalʼ working standards and putting
the employee at a disadvantage was considered as labour exploitation. The key factor for determining
the case for labour exploitation was not the employee’s consent to working under exploitative
conditions, but rather the employer’s conduct: If an employer deliberately takes advantage of an
employee’s vulnerable situation, this indicates a case of exploitation. In other words, the definition of
labour exploitation used in the survey emphasised the objective aspect of exploitation and not the
(more or less) free will of the victim or the means of coercion used.
The study was based on the following working definitions:
Exploitation of labour
Exploitation of labour occurs when an employer benefits from the labour of a person without
either providing adequate compensatory measures or guaranteeing decent working conditions.
Remuneration and working conditions are significantly lower than the normal level in the
relevant sector. The disproportion, to the disadvantage of the employee, between the labour
provided and the benefits obtained is rendered possible by the employeeʼs dependence on the
employer. The employer takes advantage of the employeeʼs vulnerable situation to enforce
exploitative working conditions. Sometimes employers will also use other forms of physical or
psychological coercion.
Human trafficking for the purpose of labour exploitation
Human trafficking for the purpose of labour exploitation corresponds to a succession of actions
aimed at exploiting the labour of a person (as defined above by labour exploitation). By
exploiting the vulnerable situation of a person and/or deceiving them as to the nature of the
work or the working conditions, human traffickers force their victims to agree to recruitment
and subsequently to work under exploitative conditions, sometimes by threatening their
victims or exerting physical violence.
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Method
The empirical research of a phenomenon that takes place largely in secret and illegally ‒ as is the case
with labour exploitation or trafficking for the purpose of exploiting labour ‒ poses great challenges.
For obvious reasons, research cannot be founded on the experience and information of those who are
directly involved. Therefore, the researchers had to depend on the expertise of those who encounter
cases of labour exploitation (and trafficking for that purpose) as part of their professional work. The
research team gathered a maximum amount of information from the experts by means of an
exploratory questionnaire, by conducting interviews with around 30 specialists (for example from the
judiciary, the police, victim assistance, migrant support services and trade unions) and by analysing
police and judicial files. The researchers also conducted several interviews with workers who had
experienced exploitative situations. The data was mainly gathered in the cantons of Bern, Geneva,
Ticino and Zurich.
Economic sectors involved
The study revealed that labour exploitation exists in Switzerland and, to a lesser extent, so does
trafficking for that purpose. Representatives from the public sector and civil society observe instances
of labour exploitation in many sectors. Some cases suggest that trafficking is also involved although
this can rarely be verified. Most of the experts consulted believed that a large number of cases
involving labour exploitation go undetected. Besides the fact that criminal activities take place
furtively, the vulnerability of victims of labour exploitation (and trafficking) is not conducive to their
disclosure of abuse at work.
Based on the examples of labour exploitation reported in the survey, it was possible to identify certain
risk sectors, although considerable differences existed between the cantons investigated (Bern,
Geneva, Ticino, Zurich). The construction industry appears to be the most affected in all four cantons,
whereby a particularly large number of cases involve Canton Zurich. The catering and hotel sector is
in second place, with a slight concentration of cases in Canton Bern. Exploitation in domestic service
is evident mainly in Canton Geneva, including in the private residences of people with diplomatic
immunity. A considerable number of cases involving exploitation are connected with illegal activities
such as begging, theft, burglary and drug trafficking, particularly in big cities like Geneva or Zurich.
In Canton Geneva two trials recently resulted in convictions for trafficking under Article 182 of the
Swiss Criminal Code. Exploitation is also evident in the agricultural sector, albeit to a lesser extent.
The survey also shows that exploitation has many facets. For example, women working in brothels are
subject not only to sexual exploitation but are sometimes also coerced into cleaning duties.
Conversely, domestic employees are sometimes forced into prostitution.
According to the survey, the profile of the victims (i.e. gender and country of origin) depends on the
economic sector in which they are employed. For example, victims in the domestic sector are
primarily women while in the construction industry the victims are exclusively men. In other sectors,
they can be men or women. The survey found that they have little scope for manoeuver and their
living conditions are precarious. For the majority, this is due to their plight as immigrants and their
uncertain residential status. According to all experts consulted, the majority of those subject to labour
exploitation have no or only a precarious residence permit in Switzerland. The ability of victims to act
is in some cases restricted by their age (in the case of minors) or by a disability, both reinforcing their
dependency.
General features of exploitation
Those subject to exploitation originate mainly from the poorer countries of the world, particularly
from Eastern Europe (including EU countries), the Balkans (especially in the construction industry and
in connection with criminal activities), Africa and Latin America (especially in domestic work), and
Asia (especially in the hotel and catering sector). Victims and abusers often come from the same
geographic region, but the latter usually have permanent residence status in Switzerland. In the field of
domestic service and agriculture in particular, abusers are often also Swiss nationals with no
immigrant background.
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When employers and workers come from the same region, recruitment usually takes place through
social and family connections. Those recruited are frequently deceived about the prospective work and
working conditions. They enter Switzerland either on their own or with the help of, and accompanied
by, the person who will later exploit them. Often it is not even necessary to recruit workers abroad
because the market for illegal labour in Switzerland has a sufficient number of persons who are
prepared to work under very adverse conditions. Those already present in Switzerland are usually
recruited within migrant communities and through recommendation. Swiss employers who have no
connection to migrant circles often recruit workers through job advertisements or employment
agencies.
Whether exploitation is a result of trafficking or not, employers benefit from the vulnerable situation
of their employees, who often have little or no knowledge of the language or the law, few material
resources, are socially isolated or whose family in the country of origin are put under pressure.
According to the experts consulted, the use of severe coercion and punishment such as physical
violence or restricted freedom of movement is rare in Switzerland. Rather, employers use
psychological pressure (for example, by threatening to expose the victim’s illegal stay in the country)
or other forms of humiliation to enforce bad working conditions.
The strategy used by employers to exploit their labour force therefore consists of pushing the
boundaries of what victims can endure while remaining within the limits of legality. By exploiting the
vulnerability of their workers, employers can impose very adverse working conditions without having
to resort to violence or to restrict freedom of movement. Also other surveys have found (Cyrus et al.
2010; FRA 2015), most situations involving exploitation take place largely on a consensual basis.
Because of their vulnerability few victims report the abuse. Hence, labour exploitation remains a
lucrative business in which the perpetrators run little risk of prosecution. Nor do victims, in general,
have the resources necessary for legal redress; according to the cases observed in this survey, the few
victims who managed to escape exploitation only decided to act once they met a person they could
confide in and trust, and who was able to help them.
The fact that victims endure adverse working conditions for a long time before seeking help should not
be interpreted as a deliberate choice; rather, this supposed contentment with bad working conditions is
simply for want of a better job alternative. According to experts, victims only begin to cooperate with
prosecution authorities once they realise they have rights that must be respected regardless of their
residential status.
Legal framework and measures
The most important legal provision on human trafficking is the Palermo Protocol of 15 November
2000. It was ratified by Switzerland in 2006. On 1 December of the same year, Article 182 of the
Swiss Criminal Code (Trafficking in Human Beings) came into force. This replaced Article 196,
which outlawed trafficking only for the purpose of sexual exploitation. In keeping with international
standards, the new provision extended the definition of trafficking to include exploitation of labour
and trafficking of human organs. In more recent developments, the Council of Europe Convention on
Fighting Trafficking was ratified and entered into force on 1 April 2013, at the same time Switzerland
adopted a new federal law on the extra-procedural protection of witnesses. The rights of persons
identified as victims are regulated in various statutory provisions. Where there is no evidence of
human trafficking, some aspects of labour exploitation are covered by criminal or civil law provisions
such as labour legislation (Code of Obligations, Employment Act, Illegal Employment Act, collective
employment contracts, etc.). Unlike in some European countries, there are no legal provisions in
Switzerland on labour exploitation or similar acts like bondage or forced labour that occur outside the
context of trafficking. Moreover, since the term exploitation of labour can be interpreted in different
ways, the survey’s researchers decided to put forward their own definition for the purpose of the
survey.
Very little case law exists on trafficking for the purpose of labour exploitation. There have been only
four criminal convictions for this offence since 2007 (two in Geneva, one in Basel and one in St.
Gallen). Although police inquiries and criminal investigations are more prevalent, their number in the
four cantons analysed did not exceed twenty over the six years from 2009 to 2014. The small number
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of residence permits granted to trafficking victims confirms these findings. However, it should be
noted that the statistics are not complete, nor are they broken down according to the type of
exploitation. Therefore, it is difficult to assess the true extent of trafficking for the purpose of labour
exploitation. Above all ‒ according to all the specialists consulted and the scientific literature ‒ the
figures reveal less about the extent of the phenomenon and more about the scope of law enforcement.
Few measures exist at present to combat trafficking for labour exploitation, a situation similar to that
of trafficking for sexual exploitation ten years ago. In the last decade, however, Switzerland has
implemented various measures to combat trafficking for sexual exploitation; the various cooperation
mechanisms that are now in place and achievements in detecting relevant cases bear witness to the
progress in this field. In view of the high requirements of proof, which pose a particular challenge to
law enforcement, several interviewees emphasised the crucial role of the public prosecutor with regard
to human trafficking.
Although it is useful to draw on experience gathered from the field of sexual exploitation, new
instruments are required to deal with trafficking for labour exploitation. This requires focusing on the
broader phenomenon of labour exploitation before considering the aspect of trafficking. Those
interviewed thought that cooperation with the labour market authorities and social partners should be
strengthened since they are in the best position to detect exploitation. They are also the key players in
implementing preventive measures or taking non-penal steps. The data collected shows that in the
cantons of Basel-Land, Bern, Fribourg, Geneva, Neuchâtel and Valais, labour market authorities are
already involved in anti-trafficking cooperation mechanisms. In Canton Geneva, a trade union is also
involved. In fact, this canton has a network of associations that are very active in combating labour
exploitation and trafficking. The absence of trade union involvement in Switzerland in general,
however, is mirrored in other European countries such as Germany.
Thoughts on prevention
Cooperation between those involved in the areas of prevention, prosecution, victim assistance and
partnership is just as important in fighting trafficking for the purpose of labour exploitation as it is in
combating trafficking for sexual exploitation. The survey found that a major obstacle to effective
cooperation was the absence of usable definitions of labour exploitation and trafficking for labour
exploitation. The meanings of these concepts vary, sometimes within the same discipline but more so
between different areas of intervention. This leads some to conclude that those who work in social
services, for example, speak a completely different language from the judiciary. Establishing a
consensual definition is only possible through a process of consultation between all those concerned.
The wide experience of the specialists highlights that developing a proper cantonal strategy for
combating trafficking depends on both the commitment of key players within public administration
and NGOs, and the expertise of public prosecutors, police officers and victim assistance bureaus,
amongst others. Implementing such a strategy will require availability of the necessary resources. And
that, in turn, will require the appropriate political will.
Asked for their opinion on what preventive measures would be useful in fighting trafficking for the
purpose of labour exploitation, the experts advocated measures to strengthen cooperation and
networking between the various players, and further training. A checklist of indicators to help identify
possible victims of exploitation would also be useful, as would information and awareness-raising
campaigns for experts and the public. To ensure the effectiveness of such campaigns, resources for the
necessary follow-up measures would have to be available and those involved in the various fields
would have to be sure to take the necessary steps.
Several of the experts also pointed out that although the legal framework for victim assistance had
improved, this was not the case in practice. The provisions on victim assistance leave wide scope for
discretion, which leaves those concerned uncertain of the effectiveness of their efforts. Since most of
the suspected victims are migrants, a preventive approach should be accompanied by measures in the
field of migration, which respect human rights and ensure access to the courts by all migrant workers.
In this respect, the approach taken by the Permanent Mission of Switzerland to the United Nations
regarding people employed by diplomats and international functionaries subject to diplomatic
immunity is an interesting model, albeit with potential for improvement.
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Because trafficking is difficult to prove, representatives from law enforcement and other specialists
advocate improving the coherence and legitimacy of repressive measures by introducing a subsidiary
or complementary criminal provision punishing the exploitation of labour outside the sphere of
trafficking. Certain European countries such as the United Kingdom and France already have an
appropriate clause; others such as Germany are seriously considering introducing one.
Often, it is the uncertain residential status of workers that is the real obstacle for enforcing their rights.
Ultimately, it is in the best interests of society to adopt an approach that captures the whole scope of
labour exploitation. This means respecting the fundamental rights of all, making the most of the
various legal provisions (criminal law, employment law, foreign nationals law, etc.) and enhancing
cooperation between all those involved.
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